‘REALITY IS FOR THOSE WHO CANNOT SUSTAIN THE
DREAM’: FANTASIES OF SELFHOOD IN LEGAL TEXTS
RAFAŁ MAŃKO*
I. INTRODUCTION: (THE DIFFICULTY OF) PUTTING ON JOHN
NADA'S GLASSES
The institutional world of law 1 can be perceived either from an
internal or external perspective.2 The internal perspective is the one adopted
by lawyers, who - to use Artur Kozak’s expression - are not only legal
‘experts’, but also legal ‘believers’, in the sense that they treat legal concepts
and notions as if they really existed.3 A legal believer, attached to the internal
point of view of the institutional world of law, is unable to notice the law’s
idxeological character.4 As Althusser famously put it, if we are in ideology,
DOI: 10.1515/wrlae-2015-0021
Ph.D. in law (University of Amsterdam); external fellow at the Centre for the Study of
European Contract Law (CSECL), University of Amsterdam. All views expressed in this
paper are personal views of the author and do not represent the position of any institution.
1
I use the notion of an ‘institutional world’ following Peter Berger and Thomas Luckmann,
The Social Construction of Reality: A Treatise in the Sociology of Knowledge (first published
1966, Penguin 1991) 65ff.
2
Cf Herbert L.A. Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 89; Artur Kozak,
Myślenie analityczne w nauce prawa i praktyce prawniczej [Analytical Thinking in Legal
Scholarship and Legal Practice] (Wydawnictwo Uniwersytetu Wrocławskiego 2010) 80.
3
Kozak, Myślenie (n 2).
4
Cf Adam Sulikowski, ‘Postmodernistyczne tropy w juryscentryzmie’ [Postmodern Tropes
in Juriscentrism], in Paweł Jabłoński, Przemysław Kaczmarek, Michał Paździora and Maciej
Pichlak (eds), Perspektywy juryscentryzmu [The Perspectives of Juriscentrism] (Prawnicza i
Ekonomiczna
Biblioteka
Cyfrowa
2011)
107
<http://www.bibliotekacyfrowa.pl/Content/38056/0008.pdf > accessed 8.1.2015.
*
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we do not notice it: ideology is invisible for us,5 it is part of the ordinary
nature of things, common sense6 or doxa.7
In his recent film Pervert’s Guide to Ideology8, Žižek discusses John
Carpenter’s science fiction film They Live (1988). In the latter, a jobless
vagabond named John Nada finds a hidden box in a church; the box contains
dozens of sunglasses. He puts on a pair and discovers that he sees the world
differently. First of all, instead of being colourful, everything is black and
white. Secondly, when Nada looks at advertisements in newspapers, he sees
their hidden ideological content: orders to obey and conform to the system.
Thirdly, when he looks at people from the upper classes, as well those who
serve to maintain their power (e.g. policemen), he sees that, in fact, they are
not human beings, but humanoid aliens with strange faces. In analysing They
Live, Žižek focuses on a key scene where Nadia tries to persuade his friend,
Frank, to put on a pair of these special 'ideological' sunglasses and find out
the hidden truth about the world. Frank violently opposes her, and the two
fight. In the end, Nadia wins the confrontation and forces Frank to put the
glasses on, who therefore goes on to see the truth about the world.
Confronting the law as a form of ideology can be compared to putting
on a pair of special glasses from They Live. It is not an easy task, especially
for lawyers who are very strongly attached to the internal point of view as
part of their professional habitus,9 and I would not be surprised if Frank's
reaction of violent opposition towards the unmasking of the ideological lie
were the rule rather than the exception. Nevertheless, with this essay I hope
to contribute to an ideological demistification of law.
I will put forward a methodology for subjecting legal texts to a
critique of ideology, understood as the identification of its symptoms, that is
points of breakdown of the ideological field which are simultaneously
necessary for the field to achieve its closure.10 The paradox of symptoms is
that they are inevitable for the ideological field, yet they undermine it,
opening up a space for its crtitique. The aim of this paper is therefore to
confront the fundamental fantasies conveyed by legal ideology. I will
approach ideological fantasies in strict connection with ideological
5
Louis Althusser, ‘Ideology and Ideological State Apparatus (Notes Towards and
Investigation)’ in idem, Lenin and Philosophy and Other Essays (Ben Brewster tr, Aakar
2006) 118.
6
Hugh Collins, Marxism and Law (first published 1982, OUP 1988) 67.
7
Doxa, a notion taken from Bourdieu’s critical sociology, denotes ‘a set of hidden
assumptions (comprising cognitive schemata and schemata of action) which are not put into
doubt. [...] Individuals who participate in a given field [or “institutional world” in Berger’s
and Luckmann’s terminology – R.M.] accept them in non-reflexively, as a sui generis
“credo”, something obvious which is not doubted upon’ (Hanna Dębska, ‘W okowach
prawniczego sensus communis: O trudnościach uprawiania krytycznie zorientowanej
socjologii prawa’ [Shackled by the Legal Sensus Communis: On the Difficulties of Critically
Oriented Sociology of Law] (2014) 8 Archiwum Filozofii Prawa i Filozofii Społecznej 18,
25).
8
The Pervert’s Guide to Ideology, written by Slavoj Žižek, directed by Sophie Fiennes (136
minutes, Zeitgeist Films, 2012).
9
Cf Dębska, ‘W okowach’ (n 7); Hanna Dębska ‘Iluzje prawniczego Rozumu: O
społecznych warunkach praktyk (bez)refleksyjnych’ [Illusions of the Legal Mind: On the
Social Conditions of (Non-)Reflexive Practices] (2014) 42 Studia Prawno-Ekonomiczne 11.
10
Slavoj Žižek, The Sublime Object of Ideology (first published 1989, Verso 2008) 16.
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interpellation, i.e. the process by which a human individual is transformed
into a subject of ideology. Ideological interpellation of individuals into
subjects is one of the chief operations of the law, which, in its current form,
is based on the fundamental assumption that human beings are subjects of
rights and duties.
For the sake of clarity I wish to emphaise that the ideological
operation of the law need not be an intentional act undertaken by legislators,
judges or legal academics with the aim of deceiving themselves, each other,
or society at large. Following Hugh Collins I contend that:
‘The dominant ideology represents common sense understanding of
the world and elementary principles of morality.’11
Therefore, legislators or judges, when engaged in lawmaking and legal
interpretation, conciously think that what they are cloaking in legal form is
rather ‘common sense’ or ‘elementary principles of morality’ rather than
ideological premises.12
II. NOT A DREAM-LIKE ILLUSION: IDEOLOGY AS A TOOL OF
CRITIQUE
1.
Fantasy and the status quo
Žižek’s notion of ideology is undoubtedly an original one, both
against the background of Marxist and non-Marxist concepts of ideology.13
The chief theoretical innovation put forward by the intellectual ‘Giant of
Ljubljana’ is the emphasis put on the linkage between the notion of 'ideology'
and that of ‘fantasy’. Following Jacques Lacan’s view that in the opposition
between dream and reality, fantasy must be placed on the side of reality,14
Žižek makes the famous claim that ‘reality is for those who cannot support
[sustain] the dream’ 15 . In a classical passage from the Sublime Object of
Ideology, Žižek points out that:
“Ideology is not a dreamlike illusion that we build to escape
insupportable reality; in its basic dimension it is a fantasyconstruction which serves as a support for our “reality” itself: an
“illusion” which structures our effective, real social relations and
thereby masks some insupportable, real, impossible kernel
(conceptualized by Emesto Laclau and Chantal Mouffe as
"antagonism": a traumatic social division which cannot be
symbolized). The function of ideology is not to offer us a point of
11
Collins, Marxism and Law (n 6) 67.
ibid 73.
13
Robert Pfaller, ‘Interpassivity and Misdemeanors: The Analysis of Ideology and the
Žižekian Toolbox’ (2007) 1 (1) International Journal of Žižek Studies 1, 36. For an analysis
of the differences between the (Marxist) notion of ideology and Bourdieu’s notion of doxa
see Hanna Dębska, ‘Law’s Symbolic Power: Beyond the Marxist Conception of Ideology’,
(2015) 5 (1) Wrocław Review of Law, Administration and Economics 5.
14
Žižek, The Sublime Object (n 10) 44.
15
ibid 45.
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escape from our reality but to offer us the social reality itself as an
escape from some traumatic, real kernel.”16
In the words of Polish philosopher Mariusz Burzyk, the fantasy is a ‘defence
mechanism of the ego, a scenario according to which the ego organises and
interprets reality in its own way which gives it pleasure’.17 Burzyk points out
that essentially, “for reality to be bearable it [...] is always filtered and
deformed by the fantasy mechanism.” 18 Ideology gives the subject ‘an
illusion that [...] he has taken control over himself and is [...] therefore capable
of controlling his choices in a fully concious way.’ 19 Ideology plays an
important role in the political dimension: its serves to protect the status quo,
it “masks reality, misrepresents reality, creating a fantasy world to allow the
continuation of a system.”20 Indeed, “[t]he fundamental aim of ideological
fantasy is to silence social antagonism.”21 From an epistemological point of
view, we can, following Žižek, compare ideological fantasy to a ‘frame’
which we superimpose on raw facts of social reality in order to understand
and interpret it.22
2.
The Symbolic, Imaginary and Real
Linking the theory of ideology with Lacan’s notion of three
psychoanalytical registers (the Symbolic, Imaginary and the Real), Žižek
points out that ideological interpellation occurs within the Imaginary and
Symbolic under the domination of the Symbolic.23 It is appropriate to recall
here that, according to Lacan, the Imaginary concerns the illusory surface of
phenomena which conceals their inner structure,24 and is linked to our selfimage. 25 The Symbolic order, in contrast, is the big Other, that is the
expectations of society towards the subject.
The pair of Imaginary vs Symbolic is coupled with the pair of the
Ideal Ego vs. the Ego-Ideal – the Ideal Ego (in the Imaginary register) denotes
a vision of the self with which the subject identifies,26 whils the Ego-Ideal (in
the Symbolic register) denotes the point of view from which the subject views
himself,27 the gaze which the subject wants to impress.28 The Ideal Ego vs
Ego-Ideal distinction can be illustrated using the example of a soldier: he is
16
ibid 45.
Mateusz Burzyk, ‘Psychoanaliza a polityka: stawka podmiotu’ [Psychoanalysis and
Politics: the Stake of the Subject] (2013) 35 Diametros 1, 11-12. All translations from Polish
are the Author’s.
18
ibid 12, footnote 48.
19
ibid 12.
20
David Marrani, ‘Althusser in “Avatar”’, in Laurent de Sutter (ed), Althusser and Law
(Routledge 2013) 105.
21
George I. García and Carlos Aguilar Sánchez, ‘Psychoanalysis and politics: the theory of
ideology in Slavoj Žižek’ (2008) 2 (3) International Journal of Žižek Studies 1, 9.
22
Žižek, The Sublime Object (n 10) 138.
23
ibid 123.
24
Dylan Evans, An Introductory Dictionary of Lacanian Psychoanalysis (Routledge 1996)
82.
25
Bruce Fink, A Clinical Introduction to Lacanian Psychoanalysis: Theory and Technique
(first published 1997, Harvard UP 1999) 24.
26
ibid 116.
27
ibid.
28
Burzyk, ‘Psychoanaliza a polityka’ (n 17) 8.
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expected to identify with the army's Commander-in-Chief as his Ego-Ideal
(i.e. to identify with the Commander-in-Chief’s point of view upon himself,
the solider, i.e. be fearless, risk his life for the victory, eat canned shit...), but
is not expected to identify with that Commander as his Ideal Ego (i.e. the
solider should not want to be like the Commander-in-Chief, i.e. give orders,
hide in a safe bunker far away from the front drinking good cognac...).29 Both
forms of identification, that is the symbolic and imaginary, are tightly
interconnected and complementary. This is because imaginary identification
(with the Ideal Ego) takes place under the gaze of the big Other (the Symbolic
order); the Ideal Ego is always constructed from the point of view of a given
Ego-Ideal. 30 Therefore the Symbolic order (the Ego-Ideal/big Other)
dominates over the Imaginary order (the Ideal Ego).31
A combination of the symbolic and imaginary identification causes
the effect known as retroversion, that is the subject’s illusion as to his
autonomy, which masks his fundamental dependence upon the big Other who
is the subject’s actual, but decentred, cause. 32 The effect of ideology is
therefore the subject’s symbolic identification with a certain ‘signifying
feature’ in the big Other.33
The price paid for this illusion of autonomy is high: the subject’s
identification not only with the big Other, but also the imaginary other,
inevitably leads to his alientation. 34 This alienation is a consequence of a
discrepancy between the ‘actual’ self and the imaginary self (reflected in the
mirror). The metaphor of the ‘mirror scene’ is based on a situation in which:
“a child commences to recognise his reflection in the mirror [...] and
starts to [...] identify with this reflection. [...] This is the beginning of
alienation: the picture seen in the mirror helps to obtain an image of
one’s own Self, but on the other hand it remains forever something
alien, because it is inverted and not necessarily the same size [as the
true Self], and above all it is external and distanced.” 35 (emphasis
added)
What is important in Žižek's notion of ideology is that he stresses the
objective, rather than subjective character of ideology, thereby distancing
himself from traditional Marxist accounts under which ideology was equated
with ‘false conciousness’ in line with the formula ‘they do not know it, but
they are doing it’36. In its place, relying on Sloderdijk’s notion of the ‘cynical
reason’ Žižek proposes the formula ‘they know very well what they are doing,
but still, they are doing it’37. Žižek justifies this approach by referring to the
fact that in modern societies it is typical to demonstrate a certain distance
towards the hegemonic ideology, and that this distance is part of the
29
Henry Krips, ‘Interpellation, Populism, and Perversion: Althusser, Laclau and Lacan’
(2007) 2 Filozofski Vestnik 81, 88.
30
Žižek, The Sublime Object (n 10) 117.
31
ibid 123.
32
ibid 116.
33
ibid.
34
ibid.
35
Burzyk, ‘Psychoanaliza a polityka’ (n 17) 4-5.
36
Žižek, The Sublime Object (n 10) 24.
37
ibid 30.
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ideological game itself.38 What is important is that the distance does not, as it
might intuitively seem, weaken the hegemonic ideology, but rather
strengthens it because it contributes to masking the role played by the
ideological fantasy with regard to the structuring of social reality. 39 The
objective character of ideology also follows from the fact that its locus is not
in the conciousness of individuals, but in the social practices in which
ideology is materialised.40
3.
Interpellation: from individual to subject
The notion of ideological interpellation is the key linkage between the
human individual and ideology, or, to use Lacanian parlance, between the
subject and the big Other.41 The notion of 'interpellation' was introduced by
Louis Althusser, who referred to it as the mechanism whereby a biological,
pre-ideological human being becomes a subject of ideology. As Adam
Sulikowski emphasized, for Althusser the ‘notion of a human being as a
subject [...] is not a neutral epistemic notion’.42 To the contrary, as Althusser
himself pointed out, this notion is in fact:
“the philosophical form of the bourgeois ideology that has
dominated history for five centuries and that (...) still reigns in large
sections of idealist philosophy and constitutes the implicit
philosophy of psychology, morality and political economy.”43
In French, the term coined by Althusser – ‘interpellation’ – has interesting
connotations, having essentially three meanings: (1) to refer to someone in a
violent way demanding something; (2) to ask someone for their identity; (3)
to cause an echo in someone. 44 According to philosopher and psychologist
Szymon Wróbel, this ambiguity of the notion of interpellation:
“has survived in the ambiguity of the very contruction of subjectivity,
whose character is at the same time subversive, seditious, anarchic,
but also subjugating, normative and normalising.”45
Keeping Wróbel's remarks in mind, let me recall Althusser’s definition of
ideological interpellation which rests on the metaphor of a policeman hailing
a subject:
“...ideology 'acts' or 'functions' in such a way that it 'recruits' subjects
among individuals (it recruits them all), or 'transforms' individuals
into subjects (it transforms them all) by the very precise operation
which I have called interpellation or hailing, and which can be
38
ibid 24.
ibid 30.
40
ibid 31, 33.
41
The present section draws on my earlier paper on ideological interpellation – Rafał Mańko,
‘Koncepcja interpelacji ideologicznej a krytyczny dyskurs o prawie’ [The Notion of
Ideological Interpellation and Critical Discourse on Law] (2014) 8 Archiwum Filozofii
Prawa i Filozofii Społecznej 41.
42
Adam Sulikowski, Posthumanizm a prawoznawstwo [Posthumanism and Jurisprudence]
(Wydawnictwo Uniwersytetu Opolskiego 2013) 98.
43
Louis Althusser, ‘On Marx and Freud’ (1991) 4 (1) Rethinking Marxism: A Journal of
Economics, Culture & Society 17, 23-24.
44
Translator’s note (21) in Louis Althusser, Ideologie i aparaty ideologiczne państwa
(Studenckie Koło Filozofii Marksistowskiej UW 2006) 22.
45
Szymon Wróbel, ‘Efekt interpelacji’ [The Effect of Interpellation] (2012) 56 Principia 173,
175.
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imagined along the lines of the most commonplace everyday police
(or other) hailing: "Hey, you there!"
Assuming that the theoretical scene I have imagined takes place in the
street, the hailed individual will turn around. By this mere onehundred-and-eighty-degree physical conversion, he becomes a
subject. Why? Because he has recognized that the hail was 'really'
addressed to him, and that 'it was really him who was hailed' (and not
someone else).”46
Althusser’s metaphor compares ideology (i.e. the big Other) to a policeman,
and the interpellated individual to a passer-by who, for some reason,
considers himself to be adressed by the Policeman’s shout of ‘Hey, you!’ The
act of consent towards the interpellation (metaphorically expressed by the fact
that the passer-by turns always-already around) expresses the necessity of
interpellation: the interpellated individuals could not have not turned
around.47 As Mladen Dolar pointed out, ideological interpellation is similar
to an offer made by a thief in a dark alley who gives a passer-by a false
alternative: ‘money or life’. 48 This ‘alternative’ is obviously false, because
we can only chose life (and give up the money). If we chose money, we will
have to give up life, and therefore, having lost our subjectivity, we will not
be able to enjoy the money (after our death inflicted by the thief). Dolar
believes that the interpellated individuals’ freedom to chose interpellation or
not is exactly the same as the freedom of the person asked by the thief. In line
with that, Adam Sulikowski remarks that ideological interpellation can be
compared to ‘animal training within the framework of accepted social
practices which impose upon the individual a role, and in consequence also
the status of a subject.’49 Sulikowski's metaphor, in which the human subject
is compared to a tamed beast, and the big Other to an animal trainer, is
insightful in that it ironically captures the falsehood of our illusions of
freedom and choice with regard to ideological interpellation on the one hand,
and the ruthlessness of the process itself on the other hand. One could say that
human individuals-in-transformation-into-subjects are being brutally
maltreated by ideology, which does not spare the rod.
In that context it comes as no suprise that Althusser's notion of
ideology is quite pessimistic. The French phislopher writes that interpellated
subjects:
““work”, they “work by themselves” in the vast majority of cases,
with the exception of “bad subjects” who on occasion provoke the
intervention of one of the detachments of the (repressive) State
apparatus. But the vast majority of (good) subjects work all right “all
by themselves”, i.e. by ideology (...).”50
The Althusserian subject is therefore a subjugated and subjected one, tamed
and trained, automatised and obedient, unable (in the vast majority of cases)
46
Althusser, ‘Ideology’ (n 5) 118.
Pierre Macherey and Stephanie Bundy, ‘Judith Butler and the Althusserian theory of
subjection’, (2013) 1 (2) Décalages: An Althusser Studies Journal 1, 16.
48
Mladen Dolar, ‘Beyond Interpellation’ (1993) 6 (2) Qui Parle 73, 82.
49
Sulikowski, Posthumanizm (n 42) 98.
50
Althusser, ‘Ideology’ (n 5) 123.
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to oppose the hegemonic ideology. One could ask whether this pessimistic
view is indeed that far from reality?
And this is exactly where psychoanalytic theory can step in, offering a way
out of the Althusserian deadlock of subjectivation-subjection. According to
Slovenian psychoanalyst Mladen Dolar:
“For Althusser, the subject is what makes ideology work; for
psychoanalysis, the subject emerges where ideology fails. The illusion
of autonomy may well be necessary, but so is its failure; the coverup
never holds fast. The entire psychoanalytic apparatus starts from this
point.”51
Although ‘individuals are always-already subjects’52 nevertheless, as Wróbel
points out:
“the subject is not only an effect of subjugation (...) but also a
subversive power, resistance which creates a possibility for the
structure to break in the most unexpected circumstances.”53
The potential for resistance towards interpellation arises from the fact that 'the
effect of interpellation is never full, a subject never ends the process of
concluding his decision on identity.'54 In other words, as Dolar points out,
“...there is a part of the individual that cannot successfully pass into
the subject, an element of “preideological” and “presubjective”
materia prima that comes to haunt subjectivity once it is constituted
as such. A part of external materiality remains that cannot be
successfully integrated in the interior. Interpellation was based on a
happy transition from a pre-ideological state into ideology: success
wipes out the traces of its origin and results in belief in the fullyacheived autonomy and self-transparency of the subject. The subject
is experienced as a causa sui-in itself an inescapable illusion once the
operation is completed. The psychoanalytic point of departure is the
remainder produced by the operation; psychoanalysis does not deny
the cut, it only adds a remainder. The clean cut is always unclean; it
cannot produce the flawless interiority of an autonomous subject.”55
Turning now to Žižek’s notion of ideological interpellation, I have to point
out that he prefers the Lacanian term of ‘quilting’ (capitonnage) to the
Althusserian ‘interpellation’, although he makes it clear that the same
phenomenon is at stake, despite the differing terminology. 56
51
Dolar, ‘Beyond’ (n 48) 78.
Althusser, ‘Ideology’ (n 5) 119.
53
Wróbel, ‘Efekt’ (n 45) 179-180.
54
ibid 182.
55
Dolar, ‘Beyond’ (n 48) 77.
56
Žižek, The Sublime Object (n 10) 112. Using conceptual metaphor theory, one could say
that Althusser and Žižek rely on different source domains to explain the same target domain.
Whereas Althusser's metaphor relies on the 'policeman scene' (IDEOLOGICAL
INTERPELLATION IS LIKE A POLICEMAN HAILING A PERSON IN THE STREET), Žižek relies on the
'quilting point' (IDEOLOGICAL INTERPELLATION IS LIKE QUILTING A BUTTON TO A FRAME). As
will be seen further, actually the ‘quilting point’ metaphor is not the only one, especially if
we examine such expressions as "chain" or "floating", used by Žižek. In analysing conceptual
metaphors I rely mainly on George Lakoff and Mark Johnson, Metaphors We Live By (first
published 1980, University of Chicago Press 2003); Zoltán Kövecses, Metaphor: A Practical
Introduction (2nd ed, OUP 2010) and Stefan Larsson, Metaphors and Norms: Understanding
Copyright Law in a Digital Society (Lund University Press 2012). Cf Alberto Vespaziani,
52
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Quilting/interpellation occurs, in Žižekian terms, in the moment when the big
Other addresses the individual with the call of a certain Master-Signifier:
“The point de capiton is the point through which the subject is “sewn”
to the signifier, and at the same time the point which interpellates
individual into subject by addressing it with the call of a certain
master-signifier (“Communism”, “God”, “Freedom”, “America”) - in
a word, it is the point of the subjectivation of the signifier's chain.” 57
The above passage clearly indicates the importance of the notion of a MasterSignifier for Žižek’s conception of ideological interpellation. He gives
examples of four Master-Signifiers here, that is ‘Communism’, ‘God,
‘Freedom’ and ‘America’, obviously each of them representing different
ideologies. ‘Communism’ stands for the Marxist ideology, ‘God’ for any kind
of religious ideology, such as e.g. Christianity, ‘Freedom’ stands for liberal
and neoliberal ideologies and ‘America’ (in the sense of United States) stands
for the patriotic ideology of the USA. But what is the exact function of the
Master-Signifier, what is its modus operandi with regard to the process of
interpellation? Žižek clarifies this aspect in a later passage:
“Signifiers which are still in a “floating” state - whose signification is
not yet fixed - follow one another. Then, at a certain point - precisely
the point at which the intention pierces the signifier's chain, traverses
it - some signifier fixes retroactively the meaning of the chain, sews
the meaning to the signifier, halts the sliding of the meaning.”58
Žižek draws on the conceptual opposition between a ‘signifier’ and a
‘signified’, where a ‘signifier’ is a bearer of meaning (e.g. a term, concept,
symbol etc.), whereas a ‘signified’ is the meaning denoted by that signifier.
Žižek distinguished between two phases: in the first phase, signifiers are ‘in
a “floating” state’, that is their ‘signification is not yet fixed’. This means that
they do not have a determined signified at this stage. In the second phase,
signifiers already have a meaning ‘sown to them’, through a retroactive
operation of the Master-Signifier. Žižek explains the concrete implications of
this model for ideology:
“To grasp this fully, we have only to remember the above-mentioned
example of ideological “quilting”: in the ideological space float
signifiers like “freedom”, “state”, “justice”, “peace”.... and then their
chain is supplemented with some master-signifier (“Communism”)
which retroactively determines their (Communist) meaning:
“freedom” is effective only through surmounting bourgeois formal
freedom, which is merely a form of slavery; the “state” is the means
by which the ruling class guarantees the conditions of its rule; market
exchange cannot be “just and equitable” because the very form of
equivalent exchange between labour and capital implies exploitation;
“war” is inherent to class society as such; only the socialist revolution
‘Towards a Hermeneutical Approach to Legal Metaphor’, in Thomas Bustamante and Oche
Onazi (eds) Human Rights, Language and Law (Franz Steiner/Nomos 2012). The use of
small capitals to denote conceptual metaphors follows the convention used by Lakoff and
Johnson.
57
Žižek, The Sublime Object (n 10) 112.
58
ibid 113.
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can bring about lasting “peace”, and so forth. (Liberal-democratic
“quilting” would, of course, produce a quite different articulation of
meaning; conservative “quilting” a meaning opposed to both previous
fields, and so on.)”59
What Žižek essentially argues is that signifiers such as ‘freedom, ‘state’,
‘justice’, ‘peace’ and so forth do not point to any specific signified (they
‘float’), until and unless a certain MasterSignifier, such as ‘Communism’,
‘Freedom’ or ‘God’, determines retroactively their meaning and thereby ties
them to a specific signified. To put it in other words, there is no ‘freedom’,
‘justice’ or ‘peace’ in the abstract; to the contrary, there is only either
communist, Christian or liberal ‘freedom’, ‘justice’ etc. These concepts are
in a way empty outside any given ideology; only within a specific ideology
do they mean something and make sense.
Lawyers are very familiar with this phenomenon with regard to
general clauses: what is Treu und Glauben in the German Civil Code 60
depends heavily on the current Master-Signifier, and the radical
transformation of the meaning of this general clause under the Nazi regime
(when it became loaded with anti-Semitic content), and then, once again,
under the liberal-democratic Federal Republic of Germany, is a case in point.
Using Žižekian terminology, one could say that the signifier of ‘Treu und
Glauben’ floated freely, and was first quilted under the Weimar Republic,
then in Nazi Germany, 61 and then, once again, in the lib-dem Western
Germany,62 each time by a different Master-Signifier, and each time tied to a
different signified. We expierence the same phenomenon with regard to the
signifier of ‘freedom’, which under the neoliberal Master-Signifier means
freedom of entrepreneurial individuals from state, 63 rather than actual
freedom which is possible only with a certain minimum income.
4.
‘A past which has never existed’: the Real
A psychoanalytical account of ideological interpellation would be
incomplete without the notion of the Real. Indeed, a feature of this account is
the stress placed upon a certain lack which characterises both parties to the
interpellative relationship, that is the interpellated subject and the
interpellating Subject, the big Other. 64 The lack on the side of the
interpellated subject is the Real, the element of the individual which precedes
interpellation but actually has never been, to use Dollar’s expression: ‘a past
which has never existed’65. In clinical terms, the Real is defined as
59
ibid.
‘Treu und Glauben’, literally ‘trust and faith’, is usually translated into English as ‘good
faith’ (bona fides). It is a general clause found in § 242 of the German Civil Code (BGB) of
1896 which has given rise to extensive judicial law-making. The judge-made equitable law
based on § 242 BGB is referred to as the ‘inner system’ of the general clause.
61
On which see, specifically, Bernd Rüthers, Die unbegrentzte Auslegung: Zum Wandel der
Privatrechtsordnung im Nationalsozialismus (7th ed, Mohr Siebeck 2012) 224-236.
62
See e.g. Reinhard Zimmermann, The New German Law of Obligations: Historical and
Comparative Perspectives (OUP 2005) 25-28.
63
Janusz Reykowski, ‘Wolność gospodarcza jako ideologia’ [Economic Freedom as
Ideology] (2013) 210 Studia Socjologiczne 7, 9.
64
Dolar, ‘Beyond’ (n 48) 88; Mańko, ‘Koncepcja’ (n 41) 47.
65
Dolar, ‘Beyond’ (n 48) 88.
60
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“that which has not yet been symbolized, not yet put into words; it is
what, at a certain moment, is unspeakable (the “impossible to say”)
for the analysand but not necessarily for the analyst.”66
The analyst’s efforts at interpretation aim at ‘hitting the real’. As Fink
indicates:
“Insofar as interpretation hits the real, it does not so much hit the truth
as create it. For truth exists only within language (it is a property of
statements), and thus there is no truth of that which cannot yet be said.
Truth is not so much “found” or “uncovered” by interpretation, as
created by it.”67
For the theorists of psychoanalysis, the Real is equivalent to what did not pass
from the preideological individual into the ideological subject, a subject
resisting symbolisation which, on that account, can be used – as a symptom
– to undermine the efficacy of interpellation.68 As Sheridan elucidates:
“The “real” [...] stands for what is neither symbolic nor imaginary, and
remains foreclosed from the analytic experience, which is an
experience of speech. What is prior to the assumption of the symbolic,
the real in its “raw” state (in the case of the subject, for instance, the
organism and its biological needs), may only be supposed, it is an
algebraic x. This Lacanian concept of the “real” is not to be confused
with reality, which is perfectly knowable: the subject of desire knows
no more than that, since for it reality is entirely phantasmatic.”69
It is perhaps the last part of Sheridan’s definition of the Real which is
particularly worth focusing on: the conception that for the subject ‘reality is
entirely phantasmatic’. This begs the question of the status of reality in
comparison to the Real. According to the words of Žižek quoted above, the
ideological fantasy is ‘a support for our “reality” itself”, it is ‘an “illusion”
which structures our (...) real social relations’70 The fantasy is not ‘a point of
escape from our reality’; to the contrary, it ‘offer[s] us the social reality
itself’.71 What does the subject wish to escape from? It is precisely the Real
that he wishes to avoid: the ideological fantasy is ‘an escape from some
traumatic, real kernel’, that is ‘a traumatic social division which cannot be
symbolized’.72
III.
LEGAL IDEOLOGY BETWEEN SYMPTOM AND FETISH
Applying Žižek’s conceptual framework to legal ideology, we can say
that legal texts – codes, statutes, judgments, academic writings – are
expressions of the Symbolic order, that is the big Other. They convey a certain
66
Fink, An Introduction (n 25) 158.
ibid.
68
Mańko, ‘Koncepcja’ (n 41) 47.
69
Alan Sheridan, ‘Translators note’ in Jacques Lacan, The Four Fundamental Concepts of
Psychoanalysis (tr Alan Sheridan, first published 1973, Hogarth Press 1978) 280.
70
Žižek, The Sublime Object (n 10) 45.
71
ibid.
72
ibid.
67
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vision of society – an ideological fantasy – which creates and sustains the
social reality. Popular sovereignty, equality before the law, autonomy of the
will or responsibility based on guilt – all these concepts represent certain
ideological fantasies (in the psychoanalytic meaning of the term). They are
fictions: of course, the entire citizenry cannot be a collective ‘sovereign’, of
course people are not really equal before the law (the well-off are usually
'more equal'), of course subjects of private law are not really free and
autonomous, of course the notion of ‘guilt’ in criminal law is a legal construct
which departs from psychological findings,73 and so forth. And yet, despite
the fact that we all know that these fundamental concepts of the legal field
are fictitious, we still insist on sticking to them. The list could be multiplied,
including the fantasy that judges ‘apply’ the law and do not ‘make it’ (popular
e.g. in French legal culture), the fantasy that all people ‘know’ the law,
although with its complexity this is utterly impossible, or the fiction that
behind legislative texts there stands a ‘rational legislator’ (a fiction typical for
Polish legal culture), although lawyers know very well that legislation tends
to be irrational and inconsistent, and so forth.
The fantasies of legal ideology are not points of ‘escape from our
reality’, but ‘offer us the social reality itself’. Indeed, the social practice of
lawyers (and legal subjects) usually proceeds as if the fantasies of legal
ideology were true. Thereby, these fantasies – built into social practices –
structure those practices, and contribute to the social construction of reality,
at least with regard to legal reality (reality of the legal sub-world).
Assuming that legal ideology – the Symbolic order – represents a set
of fantasies, we must take the second step and enquire what do these fantasies
mask? In other words, a critique of legal ideology must aim at unmasking the
Real, the ‘impossible kernel’, which is masked by the fantasy. This would
constitute the first step in the critique of legal ideology. A second step in that
critique would be a search for symptoms within the legal ideology itself, that
is an analysis of the ideology aimed at revealing its internal inconsistencies.
We must, however, bear in mind the fact, as Žižek has repeatedly
stipulated, ‘in our allegedly “post-ideological” era, ideology functions more
and more in a fetishistic mode as opposed to its traditional symptomal
mode.’74 Žižek explains that in the symptomal mode:
“... the ideological lie which structures our perception of reality is
threatened by symptoms qua “returns of the repressed” – cracks in the
fabric of the ideological lie”.75
This is because in the symptomal mode, which Žižek labels as ‘traditional’,
and which is typical for the modernist, ‘ideological era’, people still took
ideologies seriously, and the exposure of symptoms, that is ‘cracks’ of the
ideology, ‘exception[s] which distur[b] the surface of the false appearance’76
would undermine the efficacy of ideology. This is because ‘for both Marx
and Freud' - representatives of the modern(ist) way of thinking, let us add 73
A characteristic example is the notion of ‘eventual intent’ in Polish penal law, under which
the perpetrator did not want to commit the crime, but did take into account that the criminal
act would nevertheless occur.
74
Slavoj Žižek, First as Tragedy Then as Farce (Verso 2009) 65.
75
ibid.
76
ibid.
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'the way to the truth of a system (of society, of the psyche) leads through what
necessarily appears as a "pathological" marginal and accidental distortion of
this system: slips of tongue, dreams, symptoms, economic crises.’77
Whilst this may still be true with regard to certain ideologies and
certain (naïve) believers, the main mode of functioning of ideology today is
the fetishistic mode. This is strictly connected to the cynical approach to
ideology, whereby subjects always-already recognise their own ideological
‘false conciousness’, but nevertheless keep on following the social practices
dictated by that ideology. This is because the fetish is actually ‘the
embodiment of the Lie which enables us to sustain the unbearable truth’.78
Žižek explains this mode of ideological functioning by invoking the example
of the death of someone beloved:
“in the case of a symptom, I “repress” this death, I try not to think
about it, but the repressed trauma returns in the symptom; in the case
of a fetish, on the contrary, I “rationally” fully accept the death, and
yet I cling to the fetish, to some feature that embodies for me the
disavowal of the death. In this sense, a fetish can play the very
constructive role of allowing us to cope with a harsh reality: fetishists
are not dreamers lost in their own private worlds, they are
thoroughgoing “realists” able to accept the way things are because by
clinging to their fetish they are able to mitigate the full impact of
reality.”79
I contend that the fantasies of legal ideology play a fetishistic, not symptomal
role. People cling to those fantasies qua fetishes not out of naïvety or ‘false
conciousness’, and not necessarily even out of cynicism (although this may
be the case), but rather because these fantasies or legal myths not only
structure legal reality, but also make it bearable. For instance, hard legal
positivists who insist on the fact that judges ‘apply’ legal texts and do not
‘make’ the law may be naïve or cynical, but more probably they are simply
realists. By insisting on the fantasy of subsumption, they are able to ‘mitigate
the full impact’ of judicial law-making. They rationally accept the fact that
judges make the law, but still insist that this is not the case, precisely because
in this manner they are able to sustain the unbearable truth, the horror of the
legal Real, the ‘government of men’ (as opposed to the ideological lie of
‘government of laws’).
Crits, by insisting on the Real of the law – that law ‘is politics’80 – did
not discover anything new. Under a modernist, symptomal mode of
functioning of ideology their ‘discovery’ would undermine the system. But
this did not happen (and the American CLS movement withered away) simply
because under the fetishistic mode of ideological life exposing the fact that
judges are human beings, and their decisions are dictated by political
conviction or personal whim does not change anything. This is neither
because lawyers are naïve and really believe that judges are not human
77
ibid 101.
ibid 65.
79
ibid.
80
Cf Jaime Llambías-Wolff, ‘Law As The Expression Of Politics And The Result Of Its Own
Dynamics’ (2014) 3 (5) International Journal of Social Sciences 79, 83-84.
78
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beings, nor because lawyers are cynical81 and try to create a false appearance
for the gaze of society. Rather, it is because lawyers, and the majority of
society together with them, insist on the fetish of ‘government of laws, not
men’ because this fantasy-fetish makes the unbearable humanity of judges
somewhat more bearable.
Does this mean that the critique of (legal) ideology has lost any
significance? If lawyers not only are not naïve, and perhaps even not cynical,
but rather are realist fetishists, what could the purpose of such a critique be?
The answer is to be found in the very nature of the fetishist’s attachment to
his fetish and its function. As Žižek writes,
“fetishists are not dreamers [...] [but] thoroughgoing “realists” able to
accept the way things are because by clinging to their fetish they are
able to mitigate the full impact of reality.”
This means in practice that the function of the fantasy qua fetish is to allow
the subjects of ideology to escape their dream and to accept the status quo.
The function of a critique of legal ideology is precisely to undermine the
ideological naturalisation and to forge the conditions of possibility for
considering alternative arrangements.
IV.
FANTASIES OF SELF IN LEGAL TEXTS
1.
General remarks
The place occupied by legal texts and practices in the ideological
superstructure is undoubtedly special.82 Already Althusser pointed out that
‘above all with the rise of legal ideology, the category of the subject (...) is
the constitutive category of all ideology’.83 And, as Belgian philosopher of
law Laurent de Sutter observed, ‘the concept of person’ refers to an ‘abstract
receptacle of the liberties recognised in him as a subject’.84 Unlike bourgeois
legal thinkers, who have been always haunted by ‘the fantasy of getting rid
of law’,85 Althusser thought in the opposite direction: how to separate law
from the state and politics, thereby enabling a contribution of law to
emancipatory politics.86 He saw the key to this operation in getting rid of the
81
As Žižek points out, ‘cynics are les non-dupes who errent; what they fail to recognize is
the symbolic efficacy of illusions, the way they regulate activity which generates social
reality’ (Žižek, First as Tragedy (n 74) 78).
82
Cf Mańko, ‘Koncepcja’ (n 41) 41-42.
83
Althusser, Ideology (n 25) 115-116, empasis added.
84
ibid.
85
Laurent De Sutter, ‘Introduction’ in De Sutter (ed), Althusser and Law (n 20) 5.
86
ibid 8. Curiously enough, the dream of 'withering away of the law' was not foreign to Lenin,
who put forward the view that in higher phase of communist society law would 'wither away'
(die out) and be replaced by 'principles of social life'. See Vladimir Iliich Lenin, The State
and Revolution (first published 1918, Penguin 2009). Even more curiously, this expression
('principles of social life') was later used both in Soviet and Polish law under Real Socialism,
but had scarcely to do with Lenin's original conception. For more details see Rafał Mańko,
‘Quality of Legislation Following a Transition from Really Existing Socialism to Capitalism:
A Case Study of General Clauses in Polish Private Law’ in Jānis Rozenfelds (ed) The Quality
of Legal Acts and its Importance in Contemporary Legal Space (University of Latvia Press
2012).
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subject and conceiving of law without this ideological notion. As De Sutter
puts it:
“To get rid of the legal subject is (...) the first hit of a domino game:
by separating law from the legal subject, law is also separated from
the State; and by separating law from the State, it is also separated
from bourgeois legal ideology. Such is the challenge presented by
Althusser: to succeed in conceiving a law without subject or State -a
purely operational law.”87
But it was not only Althusser who noted the curious emphasis placed by legal
texts on subjects and their subjective rights. Even Hans Kelsen, very far from
any Marxist inspirations and certainly not a critical legal scholar, noted that:
“Just as traditional theory places “right” ahead of “obligation”, so it
regards the legal subject primarily as a subject of rights and only
secondarily as a subject of legal obligations. [...] Just as in the concept
of subjektives Recht [subjective right] so in the concept of
Rechtssubjekt [legal subject] the idea predominates [...] of the
existence of a legal subject which is to be found [...] in the individual
and in certain corporate bodies [...].”88
Kelsen is actually critical of the notion of subject and does not conceal its
ideological function. He writes:
“The ideological function of the self-contradictory conception of the
legal subject as the holder of rights is [...] to maintain the idea that the
existence of the legal subjct as the holder of a right – and this means
holder of a property right – is in a category that transcends the
objective law, namely the positive law [...] changeable by man; in
other words, to maintain the idea that property is an institution
protected by a barrier insurmountable by the legal order.”89.
To put it in other words, Kelsen unmasked the ideological function of the
notion of subject. The fantasy of a subject pre-existing the positive legal order
is simply to strengthen the class power of the 'haves' vis-a-vis the 'have-nots'.
Thanks to the ideological fiction, private property becomes ‘protected by a
barrier insurmontable by the legal order’, writes Kelsen. The fantasy of the
eternal subject masks the kernel of a fundamental social antagonism.
If we agree with Althusser and Kelsen that subjectivity per se is
already an ideological fiction, a fantasy masking the social Real, one could
go a step further and enquire about the fantasies connected to specific forms
of legal subjectivity, such as ‘citizen’, ‘consumer’, ‘employee’ or ‘trader’.
However, before going into any further detail of such ideological
subjectivities offered by law, let me first outline (in the subsequent section)
the methodological aspects of such a critique of legal texts.
2.
Methodological aspects
The methodology of criticising fantasies of self put forward in legal
texts must depart from the assumption that such fantasies are inherently
linked with the ideological interpellation of individuals into legal subjects.
87
De Sutter, ‘Introduction’ (n 85) 8.
Hans Kelsen, Pure Theory of Law (tr Max Night, Lawbook Exchange 2005) 169-170.
89
ibid 171.
88
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Just like ideology in general, legal ideology cannot exist without the subject;
actually, as any ideology, legal ideology exists for subjects and through
subjects (Althusser).90 If the focus of critique of legal ideology is to be placed
on interpellation, it is necessary to develop a methodological approach (a
‘protocol’ of critique) which will allow us to approach legal texts with a view
to identifying and subjecting to critique those fragments which directly
address individuals as always-already legal subjects.91
In the following sub-sections I identify seven possible stages of the
ideological critique of legal texts with view to identifiyng the places of
interpellation (4.2.1), analysing the signifier of interpellation (4.2.2), the
subject of ‘counter-interpellation’ (4.2.3), identyfying subjectivities
disavowed in the act of interpellation (4.2.4), analysing the Ideal Ego
proposed in the interpellation (4.2.5) and finally confronting the fantasy
conveyed by the interpellation with the Real that it seeks to mask (4.2.6).
a. Places of interpellation
The object of critique of legal ideology is primarily a legal text: a
piece of legislation, a judgment, a pleading or a scholarly article or book. The
material, composed mainly of words (illustrations rarely appear in legal texts)
dictates the first step of the critical operation, namely the search for ‘places
of interpellation’, those fragments of the text where the fantasy of selfhood is
particularly dense. As a rule of thumb, such ‘places of interpellation’ can be
identified with words or phrases in which the legal text addresses individuals
directly as subjects, using signifiers prima facie referring to a certain form of
subjectivity, such as ‘citizen’, ‘foreigner’, ‘natural person’, ‘slave’, ‘peasant’,
‘worker’, ‘employee’, ‘consumer’, ‘accused’ and so forth.
Obviously, the identification of such places of interpellation is
nothing but a starting point for the critique of the text, and once the forms of
legal subjectivity in question are identified, the operation of critique must go
further in order to reconstruct the entire vision of subjectivity proposed by the
legal text qua ideological text.
b. Signifier of interpllation
Once the ‘hinging points’ of the ideological fantasy with the human
individual, namely the ‘places of interpellation’, are identified (4.2.1 above),
the next step is to analyse the signifier under which the big Other (the
imaginary ‘Legislator’, the court...) addresses the individual qua subject.
Obviously, this is only a preliminary and undoubtedly superficial step;
nevertheless it can already provide an insight into the ideological fantasy
conveyed by the act of legal interpellation.
In particular, the notions of ‘radial categories’, and ‘prototype
effects’, proposed (in the legal context) by legal cognitivist Steven L. Winter,
90
Which does not rule out Althusser’s dream of a law without a subject; a law which would
not be ideological, at least in this dimension. Nevertheless actually existing law, as it is
known to us today, is raised on the foundation of the subject, as rightly underlined by Kelsen.
91
The ‘protocol’ of critique presented and applied here draws on my earlier paper: Mańko,
‘Koncepcja’ (n 41) 48-53.
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can be of assistance here.92 Considering that human thought is concrete (even
if it deals with abstract concepts),93 Winter contends that the signifiers used
in legal discourse arouse in readers determined, empirically verifiable
associations with concrete signified. 94 This is a result of the so-called
‘prototype effect’,95 that is the fact that certain ‘prototypes’ (typical signified)
constitute cognitive reference points, 96 as opposed to peripheral signified,
which are linked to the signifier qua modifications (extensions) of the central,
prototypical case.97 Winter illustrates this concept by referring to the signifier
‘mother’ and its prototypical reference point which, as he notes, has shifted
over time (from married, full-time home-employed mother to not necessarily
married, working mother), reflecting social changes (in Western societies).
Winter’s theory undoubtedly places a great emphasis on the link between
human perception of texts and the nature of human thinking (the cognitive
aspect), as well as between human thinking about texts and the social context
in which that occurs (the contextual aspect). Indeed, the theory of ideological
interpellation can benefit greatly from taking those two aspects on board
when analysing concrete examples of fantasies of selfhood conveyed by legal
texts.
c. The subject of ‘counter-interpellation’
I propose to supplement the notion of interpellation of an individualqua-subject with the notion of ‘counter-interpellation’, understood as
inseparable from the act of interpellation itself, but focused not so much on
the subject (of interpellation) as on the subject of the interpellated subject’s
enemy. The notion of counter-interpellation put forward here draws on Carl
Schmitt’s concept of the political (das Politische) understood as the
distinction between ‘friend’ and ‘enemy’, which:
“...denotes the utmost degree of intensity of a union or separation, of
an association or dissociation. [...] The political enemy need not be
morally evil or aesthetically ugly; he need not appear as an economic
competitor, and it may even be advantageous to engage with him in
business transactions. But he is, nevertheless, the other, the stranger;
and it is sufficient for his nature that he is, in a specially intense way,
existentially something different and alien, so that in the extreme case
conflicts with him are possible.”98
92
Steven L. Winter, A Clearing in the Forest: Law, Life and Mind (University of Chicago
Press 2001) 71ff.
93
ibid 94.
94
ibid 76.
95
The same is explained by other scientific models. My aim here is not to support in any
special way the prototype effect model, but rather to draw attention to the phenomenonon as
such.
96
Winter, A Clearing (n 92) 77-78.
97
ibid 92.
98
Carl Schmitt, The Concept of the Political, transl. Georg Schwab (University of Chicago
Press 2007) 26-27. Cf Mariano Croce and Andrea Salvatore, The Legal Theory of Carl
Schmitt (Routlege 2013) 20-21. See also Michał Paździora and Michał Stambulski, ‘Co może
dać nauce prawa polityczność? Przyczynek do przyszłych badań’ [What Can Legal
Scholarship Gain from the Notion of the Political? Notes Towards Further Investigations]
(2014) 8 Archiwum Filozofii Prawa i Filozofii Społecznej 55.
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Whilst Laclau pointed to the element of counter-interpellation (not using the
term put forward here) in the case of interpellation by populist ideologies,99
and argued that a people can only be constituted by a gesture of exclusion,100
I contend that counter-interpellation is not an anomaly, but rather the standard
case of any ideological interpellation, not only populist or nationalistic.
In the proposed scheme, the big Other would not only address the
subject by a call for identifying with an Ideal Ego (under the gaze of the EgoIdeal), but also would urge the subject to identify with the Ego-Ideal’s vision
of subjects in some way excluded from the ideological community,
condemned by the big Other. I therefore suggest that ideological interpellation
occurs within a binary code of the classical opposition of sacrum vs.
profranum, shaped in line with the needs of the existing status quo. 101
Interpellation (any interpellation) is therefore inherently political, and the
excluded ones (the counter-interpellated subjects) are the social symptom.102
Pointing to the subject of counter-interpellation is, perhaps, not that
easy on the textual level (as identifying the subject of ‘positive’
interpellation), but an insight into the general scheme and economy of the
interpellating text will soon reveal the identity of interpellation’s
‘antisubject’.
I contend that interpellation per legal texts follows the same scheme,
and therefore it is possible to compliment the identification of the ‘positive’
subject of interpellation (favoured in the eyes of the big Other) with the
‘negative’ subject. Thus, for instance, the citizen (as interpellated e.g. by the
Constitution) is opposed to the foreigner; the citizen participates in the
sacrum (electoral ritual etc.), from which the profane non-citizen is excluded.
‘Consumer’ (the subject interpellated by consumer law) is opposed to the
‘rogue trader’ (his ‘enemy’ or antagonist). In penal law victims (sacrum) are
opposed to criminals (profanum). In contract law, creditors are opposed to
debtors, and in property law owners to third parties, and so forth.
The importance of coupling the subject of interpellation with the
subject of counter-interpellation stems from the fact that it is impossible to
fully perceive the fantasy of selfhood conveyed by ideological interpellation
without integrating the anti-subject into the operation of critique. But there is
more to the notion of counter-interpellation than only that: it goes right into
the ontological dimension of subjectivity, to the extent that it is impossible to
‘be human’ without excluding certain others (non-subjects) from ‘humanity’,
threreby drawing a line between human and non-human. The subject of
counter-interpellation is therefore the symptom of interpellation in the
strictest possible sense: the anti-subject is necessary for completion of the act
of interpellation (no subject without anti-subject), but at the same time it
undermines the interpellation and creates a space for questioning it.
99
See Krips, ‘Interpellation’ (n 29) 93-94.
ibid 96.
101
Hanna Dębska, Władza – symbol – prawo. Społeczne tworzenie Trybunału
Konstytucyjnego [Power – Symbol – Law: The Social Construction of the Constitutional
Court] (Wydawnictwo Sejmowe 2014) 139-140, 242ff.
102
Krips, ‘Interpellation’ (n 29) 97.
100
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d. Disavowed subjectivities
Whereas the subject of counter-interpellation may well be a symptom,
he is nevertheless explicitly mentioned in the legal texts. Constitutions set out
the rights of citizens, but also regulate the status of foreigners.103 The Code
of Canon Law provides for the status of Catholics (‘Christi fideles’)104 but
also provides for heretics and schismatics.105 But this is not the case with all
forms of subjectivity. I contend that there are also subjectivities which are
actually disavowed by the ideological text. The method for discovering them
is the application of the Althusserian ‘symptomatic’ reading of texts.106 Thus,
for instance, whilst the Labour Code interpellates individuals as ‘employer’
and ‘employees’, it fails to account for the fact that a growing number of de
jure self-employed persons remain outside the framework of labour law,
working on the basis of civil-law contracts (but remaining de facto
subordinated workers). 107
e. The ideal Ego of interpellation
An important aspect of ideological interpellation is the ideal Ego
indicated to the subject by the big Other (the Ego-Ideal). Interpellation
conveys a certain ‘symbolic mandate’, adressed to the interpellated subject.
In the case of strictly legal texts, the reconstruction of the ideal Ego may, in
certain cases, require transcending the text itself and looking into its closer or
more distant context. Sometimes, however, the features of the interpellated
subject are already indicated in the text itself, especially if it is a doctrinal or
judicial, rather than purely legislative text. In the case of legislative texts,
preambles (if available), motives (of proposals), records of parliamentary
debates, as well as features of the rights and duties of legal subjects may serve
as indicators allowing to reconstruct the legal subject’s ideal Ego (as foreseen
by the Symbolic order).
For instance, in the case of a ‘consumer’, one should keep in mind the
fact that interpellation of individuals qua consumers is a relative novelty in
legal ideology, and that initially it had met with controversies among
lawyers.108 Within contract law, the interpellation of certain individuals qua
consumers replaced their interpellation to a more abstract subjectivity,
namely that of ‘contractual parties’. 109 Interpellation as consumers is
103
See e.g. Article 1 of the Polish Constitution (1997): ‘The Republic of Poland shall be the
common good of all its citizens.’ Cfr. Article 37 thereof: ‘1. Anyone, being under the
authority of the Polish State, shall enjoy the freedoms and rights ensured by the Constitution.
2. Exemptions from this principle with respect to foreigners shall be specified by statute.’
104
See e.g. Canon 208ff of the Code of Canon Law (1983).
105
ibid Canon 1364.
106
Cf De Sutter, ‘Introduction’ (n 85) 10.
107
See Article 2 of the Labour Code: ‘An employee is a person employed on the basis of an
employment contract, appointment, election, nomination or a cooperative employment
contract.’ So-called ‘trash contracts’ are technically based not on the Labour Code, but on
the Civil Code’s contract of mandate (umowa zlecenia) or contract for the performance of a
work (umowa o dzieło).
108
Klara Kańska, ‘Pojęcie konsumenta w kodeksie cywilnym na tle tendencji europejskich’
[The Concept of a Consumer in the Civil Code Against European Tendencies] (2004) 13 (1)
Kwartalnik Prawa Prywatnego 7.
109
ibid 10.
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understood as emphasising the passive character of the individual in the
economy, even referred to as homo oeconomicus passivus, a certain ‘addition’
to the business and market, 110 or even the last link in the ‘food chain’ of
commerce.111 The ideological interpellation of individuals in their capacity
as consumers is conceptually opposed to their interpellation qua citizens.112
Interpellation qua consumers is referred to as ‘commodification’ of human
rights and an off-shot of ‘bread-and-circus politics’,113 and ‘consumerism’ is
described as a commodification of human lives.114
In order to look well in the eyes of the big Other of neoliberalism,115
the individual interpellated as consumer must obey the injunction ‘consume!’.
As David Harvey points out:
“...capitalist consumer culture […] perpetually plays with desires
without ever conferring satisfactions beyond the limited identity of
the shopping mall and the anxieties of status by way of good looks (in
the case of women) or of material possessions. “I shop therefore I am”
and possessive individualism together construct a world of pseudosatisfactions that is superficially exciting but hollow at its core.”116
In order to satisfy the symbolic mandate vested in them, consumers must
indulge in the jouissance of possessive individualism, a jouissance in the
strict sense of a ‘pleasure beyond the pleasure principle’,117 full of anxiety
and giving only pseudo-satisfaction. Žižek makes an interesting attempt to
place the neoliberal subjectivity of consumerism into the Lacanian triade of
Real-Symbolic-Imaginary:
“At the level of consumption, this new spirit is that of so-called
“cultural capitalism”: we primarily buy commodities neither on
account of their utility nor as status symbols; we buy them to get the
experience provided by them, we consume them in order to render our
lives pleasurable and meaningful. This triad cannot but evoke the
Lacanian triad RSI: the Real of direct utility (good healthy food, the
quality of a car, etc.), the Symbolic of the status (I buy a certain car to
signal my status [...]), the Imaginary of pleasurable and meaningful
experience.”118
110
Cf Ewa Łętowska, Prawo umów konsumenckich [Consumer Contract Law] (2nd ed., C.H.
Beck 2002) 40.
111
ibid 228.
112
See e.g. Martijn W. Hesselink, ‘European Contract Law: a Matter of Consumer
Protection, Citizenship, or Justice?’ (2007) 15 (3) European Review of Private Law 323, 345346; Mańko, ‘Koncepcja’ (n 41) 53.
113
Joseph H.H. Weiler, cited in Hesselink, ‘European Contract Law’ (n 111) 346.
114
Jane Hardy, Poland’s New Capitalism (Pluto Press 2009) 214.
115
I subscribe to Harvey’s definition whereby ‘Neoliberalism is in the first instance a theory
of political economic practices that proposes that human well-being can best be advanced by
liberating individual entrepreneurial freedoms and skills within an institutional framework
characterized by strong private property rights, free markets, and free trade. The role of the
state is to create and preserve an institutional framework appropriate to such practices. (...)
State interventions in markets (once created) must be kept to a bare minimum (…).’ David
Harvey, A Brief History of Neoliberalism (first published 2005, OUP 2007) 2.
116
Harvey, A Brief (n 115) 170.
117
Fink, An Introduction (n 25) 226.
118
Žižek, First as Tragedy (n 74) 52.
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What Žižek points out is that the big Other’s injunction ‘consume!’ goes
beyond utility or status signification, but is performed in order to make the
lives of consumers meaningful. Only by following the big Other’s injunction
can a human being make sense of himself in the gaze of the interpellating
Subject.
f.
Confronting the fantasy with the Real
The final stage of the ideological critique of a legal text with regard
to the fantasies of selfhood conveyed in it can be the confrontation of the
ideological fantasy, embodied in the interpellation, with the Real – something
which escapes symbolisation, for instance, a fundamental social antagonism.
Let us take the example of the fundamental fantasy of labour law,
namely that of equality of the parties to the labour contract. Leaving aside the
narrow scope of labour law as such (with many employment relationships
having the legal form of ‘trash contracts’ outside the Labour Code), let us
confront the ideological fantasy with the Real it seeks to mask. On the side of
the fantasy, the Polish Labour Code declares (in Art. 10 § 1) that ‘everyone
has the right to freely chosen employment’, and in Art. 11 adds that ‘the
conclusion of an employment relationship and the determination of the
conditions of work and pay […] requires a unanimous declaration of will of
the employer and employee’, perhaps even suggesting some similarity
between marriage and employment. However, the Real behind the fantasy of
party autonomy cannot be overlooked.119
A similar critique can be waged against other fundamental fantasies
of legal ideology, for instance the fantasy of power embodied in interpellation
of individuals qua citizens. In the Symbolic register, all citizens jointly hold
supreme power in the Republic (Art. 4 of the Polish Constitution). However,
anyone having the faintest knowledge of ‘actually existing’ politics is fully
aware that such a statement obviously rests upon a fiction. With a
majoritarian electoral law which favours parties already present in parliament
(also financially), and the role of financing in the forms of modern politics, it
is obvious that an individual citizen or even a group of citizens has a
negligible share in political power within the state. Casting a vote for this or
another party, whilst capable of influencing certain issues, cannot change the
fundamental socio-economic choices made in 1989. Individuals, hailed as
‘citizens’, are fully aware of these facts and therefore the majority opts for
abstaining from the ideological ritual of voting.120 A similar critique can be
waged against the ideology of judicial application of law, which overlooks
the creative input of the judiciary, insisting on the fantasy of ‘subsumption’.
Confronting the fantasy of (legal) ideology with the Real, the element
that escapes symbolisation, allows the potential for critique to emerge, and
allows subjects, if not to directly resist their interpellation, to at least relativise
it and perceive it in a broader context.
119
120
See e.g. Reykowski, ‘Wolność’ (n 63) 18.
Hardy, Poland’s (n 114) 200.
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V. CONCLUSIONS: FROM REALITY TO DREAM?
If, in Žižek’s theoretical framework, fantasy is one side of reality, and
reality is for those who cannot sustain the dream, one can enquire about the
purpose of critique of (legal) ideology. Certainly, it is not aimed at
formulating proposals de lege ferenda, that is for the amendment of laws or a
change in the line of case-law.121 The fact that critique of ideology is directed
at legal texts does not alter its main purpose: undermining the efficacy of the
ideological grip held by the Symbolic order upon individuals by insisting on
the classical Lacanian thesis that ‘the big Other does not exist’. On a practical
level, the critique of legal ideology performed by lawyers themselves can help
to bring about a more reflexive approach to their participation in the principal
practices of legal culture, namely legal scholarship, legal education and
adjudication.122 The conciousness of law’s ideological entanglements and its
place within the more general scheme of the social construction of reality123
can help to raise lawyers’ consciousness with regard to their role in society.
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